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Words of law is a regular feature of Massachusetts Law Updates, highlighting a particular word or phrase and its meaning in law.

Today’s phrase is search warrant.

search warrant, n. (18c) Criminal law. A judge’s written order authorizing a law-enforcement officer to conduct a search of a specified place and to seize evidence. See Fed. R. Crim. P. 41.

 –  Black’s Law Dictionary, 10th ed., Bryan A. Garner, Editor in Chief, Thomson Reuters, 2014.

Massachusetts law addresses the issuance of a search warrant for documentary evidence in the possession of an attorney.

M.G.L. c. 276, § 1, forbids issuance of a search warrant for documentary evidence in the possession of a lawyer, psychotherapist, or clergyman who is reasonably believed to maintain a privileged relationship with a criminal suspect unless there is probable cause to believe that the evidence will be otherwise destroyed, concealed, or lost . . . Evidence entrusted to a lawyer that is not itself privileged (or contains privileged information), and for which there is probable cause to believe constitutes evidence of a crime under investigation, is not beyond the reach of an anticipatory warrant issued pursuant to M.G.L. c. 276, § 1Commonwealth v. Hernandez,   475 Mass. 267, 277 (2016) (defendant’s cell phone containing messages linking him to the shooting of a witness). See also Matter of a Grand Jury Investigation470 Mass. 399, 420 (2015) (concurring opinion suggesting a protocol for the seizure by way of a search warrant of unprivileged evidence held by an attorney on behalf of a client). Compare In re Search Warrant, 521 A.2d 422, 428 (Pa. 1987) (“There are no privileged isles beyond the reaches of a properly predicated search warrant”). The statute does not restrict searches of lawyers who are themselves targets of criminal investigation. Cf. In re Impounded Case (Law Firm), 840 F.2d 196, 200 (3d Cir. 1988) (searches of law offices are not per se unreasonable); United States v. Mittelman, 999 F.2d 440, 445 (9th Cir. 1993) (same). ”

“Searches with Warrants: Third Party Searches”, Richard G. Stearns, Massachusetts Criminal Law: A Prosecutors Guide, Online Edition, 2018.

In Federal cases, United States Attorneys also exercise close control over searches of premises of attorneys in order to balance respect for attorney-client relationships with the need for law enforcement to gather evidence of a crime. Their procedure for “Searches of Premises of Subject Attorneys” is detailed in the U.S. Attorney’s Manual.

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